Seymour W. James, Jr., The Legal Aid Society, New York (Allen
Fallek of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Ellen Stanfield
Friedman of counsel), for respondent.
J.P., Richter, Saxe, Gische, Gesmer, JJ.
Supreme Court, New York County (Cassandra M. Mullen, J.),
rendered September 4, 2013, as amended September 24, 2013,
convicting defendant, after a jury trial, of criminal sexual
act in the first degree and sexual abuse in the first degree,
and sentencing him to an aggregate term of 15 years,
court providently exercised its discretion in denying
defendant's challenge for cause to a prospective juror.
The panelist's responses to questioning by the attorneys
and the court, viewed as a whole, provided an unequivocal
assurance that he could keep an open mind and decide the case
impartially based on the evidence (see People v
Chambers, 97 N.Y.2d 417, 419 ; People v
Dunkley, 61 A.D.3d 428');">61 A.D.3d 428 [1st Dept 2009], lv
denied 12 N.Y.3d 914');">12 N.Y.3d 914 ). Contrary to
defendant's contention, the panelist's answers did
not raise a "serious doubt" about his ability to
apply the presumption of innocence (People v
Toliver, 102 A.D.3d 411, 412 [1st Dept 2013] [internal
quotation marks omitted], lv denied 21 N.Y.3d 1011');">21 N.Y.3d 1011
). In light of our conclusion, we need not reach the
People's alternative argument that defendant had failed
to exhaust his peremptory challenges.
the victim's testimony, defendant sought to call an
expert witness to testify about the impact of alcohol on a
person's memory, and the phenomenon of alcohol-induced
"fragmentary" blackouts. The court denied
defendant's request, finding that the proffered testimony
was speculative and not beyond the ken of the ordinary juror.
The court providently exercised its discretion in excluding
defendant's proffered expert testimony. The proposed
testimony about the general impact of alcohol on memory is
within the ordinary experience and knowledge of jurors
(People v Paro, 283 A.D.2d 669, 670 [3d Dept 2001]
["impact of intoxication on an individual's mental
state is presumed to be within the ordinary experience and
knowledge of jurors"], lv denied 96 N.Y.2d 922');">96 N.Y.2d 922
; People v Fish, 235 A.D.2d 578, 580 [3d Dept
1997], lv denied 89 N.Y.2d 1092');">89 N.Y.2d 1092 ).
failed to sufficiently explain how the proffered testimony
about fragmentary blackouts was relevant to the particular
circumstances of this case (see People v Bedessie,
19 N.Y.3d 147, 157 ). Defendant did not establish an
adequate factual foundation to support the theory that the
victim was experiencing a fragmentary blackout during the
assault. In the absence of a more-detailed proffer, the mere
fact that the victim did not recall all of the details of the
attack, or that there was a period prior to the assault that
she did not remember, was insufficient, by itself, to show
that she had suffered a fragmentary blackout. Thus, the
application of the proffered testimony to the facts of the
case was speculative. To the extent defendant is raising a
constitutional claim, that claim is unpreserved (see
People v Lane, 7 N.Y.3d 888, 889 ), and we decline
to review it in the interest of justice. As an alternative
holding, we reject it on the merits (see Crane v
Kentucky, 476 U.S. 683, 689-690 ).
event, any constitutional or nonconstitutional error in this
regard was harmless in light of the overwhelming evidence of
guilt (see People v Crimmins, 36 N.Y.2d 230');">36 N.Y.2d 230 ).
When the police showed defendant a picture of the victim, he
stated, "[T]hat's the girl who I raped." The
victim's testimony was corroborated by her 911 call made
immediately after the incident in which she reported that she
had been raped. Further, the victim made a prompt outcry to
three other witnesses, who described her as sobbing
uncontrollably, traumatized and frightened. Moreover, the
victim had physical injuries consistent with her ...